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Woman on Death Row May Get New Trial

PHOENIX (AP) — Debra Jean Milke has been sitting on Arizona’s death row for nearly 20 years, largely because a police detective said she confessed to plotting her 4-year-old son’s murder.

Now Ms. Milke could get a new trial, and even her freedom, because the detective skipped one of the most basic steps when officers interview suspects — getting them to sign a Miranda waiver, giving up their right to remain silent.

“You know, I have never seen a case where there has been no signed Miranda waiver,” said Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit, in San Francisco, at a hearing on the case in August 2008.

“I don’t know any place in the civilized world in the last 30 years,” he added, “where a state has found a waiver of constitutional rights without a signed waiver.”

Last month, Judge Kozinski and two other judges on the appeals court found that no evidence existed proving that Ms. Milke, 45, “voluntarily, knowingly and intelligently waived her rights” in the police interview in 1989. The judges ordered Judge Robert C. Broomfield of Federal District Court in Phoenix to conduct a hearing on that point and issue his findings by the end of November.

The burden falls on prosecutors to prove that Ms. Milke waived her right to remain silent. If they cannot do so and Judge Broomfield finds that she never did, the Court of Appeals for the Ninth Circuit could order a new trial — only this time Ms. Milke’s alleged confession, the centerpiece of her conviction, would be inadmissible.

Prosecutors say Ms. Milke dressed her son Christopher in his favorite outfit and told him he was going to see Santa in December 1989. He was taken into the desert by two men, they say, and was shot three times in the back of the head.

Photo

Debra Jean Milke testifying during her trial on murder charges in Arizona in 1990.Credit
Pool photo by Charles Krejcsi

James L. Styers, Ms. Milke’s live-in boyfriend, and his friend Roger M. Scott were sentenced to death in the killing, although their cases are under review.

A Phoenix police detective, Armando Saldate, said Ms. Milke confessed to plotting the boy’s death in an unrecorded conversation while they were alone, making what happened in the interview room a case of he said, she said. Ms. Milke was convicted of ordering Christopher’s death to claim a share of a $5,000 life insurance policy she had taken out on him.

A voice-mail box for Mr. Saldate, who is now a Maricopa County constable, was full and could not accept messages.

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Ms. Milke, who is being held in the state prison in Perryville, declined a request to be interviewed by The Associated Press. She and Mr. Saldate are expected to testify at a Nov. 16 hearing in Judge Broomfield’s courtroom, unless the appeals court grants a defense request for more time.

Ms. Milke’s lawyer, Michael Kimerer, said his client maintained her innocence and was a loving mother who still grieves her son’s death.

“Our main concern is the fact that I have a client that never confessed and a police detective who said she gave a confession,” Mr. Kimerer said. “There was no tape recorder, no witnesses, nothing. Just his word.”

Richard Dieter, executive director of the nonprofit Death Penalty Information Center in Washington, said it was odd that the Miranda issue was only now coming to the forefront of the case. “It’s kind of Criminal Justice 101,” Mr. Dieter said. “This is one of the first things you would check at trial or on the first appeal.”

He said that if it was true that Ms. Milke was denied basic constitutional rights but ended up being put to death, the case could become a prime example of how the death penalty could be problematic.

Ms. Milke is one of two women on death row in Arizona and 53 nationwide, compared with 3,244 men over all, according to the Death Penalty Information Center.

A version of this article appears in print on October 18, 2009, on Page A26 of the National edition with the headline: Woman on Death Row May Get New Trial. Order Reprints|Today's Paper|Subscribe